Explanatory Memorandum to COM(2021)468 - EU position in the Association Committee in Trade configuration established by the Association Agreement with Ukraine - Main contents
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| dossier | COM(2021)468 - EU position in the Association Committee in Trade configuration established by the Association Agreement with Ukraine. |
|---|---|
| source | COM(2021)468  |
| date | 11-08-2021 |
1. Subject matter of the proposal
This proposal concerns the decision establishing the position to be taken on the Union's behalf in the Association Committee in Trade configuration in connection with the envisaged adoption of a decision to amend Appendix XVII-3 (Rules applicable to telecommunication services), Appendix XVII-4 (Rules applicable to postal and courier services) and Appendix XVII-5 (Rules applicable to international maritime transport) of Annex XVII on regulatory approximation.
2. Context of the proposal
2.1.The Association Agreement
The Association Agreement between the European Union and the European Atomic Energy Community and their Member States, of the one part, and Ukraine, of the other part (‘the Agreement’) aims to establish conditions for enhanced economic and trade relations leading towards Ukraine's gradual integration in the EU Internal Market, including by setting up a Deep and Comprehensive Free Trade Area as stipulated in Title IV (Trade and Trade-related Matters) of the Agreement, and to support Ukrainian efforts to complete the transition into a functioning market economy by means of, inter alia, the progressive approximation of its legislation to that of the Union. The Agreement entered into force on 1 September 2017.
2.2.The Association Committee in Trade configuration
Pursuant to Article 465 i of the Agreement, all issues related to Title IV (Trade and Trade-related Matters) of the Agreement shall be addressed in the Association Committee in Trade configuration. According to Article 11 of Annex XVII, that Committee can take a decision to modify annex XVII of the Agreement. Pursuant to Article 465(3), these decisions shall be binding upon the Parties, which shall take appropriate measures to implement them. The Association Committee in Trade configuration shall adopt its decisions by agreement between the Parties.
2.3.The envisaged act of the Association Committee in Trade configuration
The Association Committee in Trade configuration is to adopt a decision to amend Appendix XVII-3 (Rules applicable to telecommunication services), Appendix XVII-4 (Rules applicable to postal and courier services) and Appendix XVII-5 (Rules applicable to international maritime transport) of Annex XVII on regulatory approximation (‘the envisaged act’).
The purpose of the envisaged act is to amend the aforementioned Appendices of Annex XVII in light of the evolution of the Union acquis listed therein since the initialling of the Agreement on 30 March 2012. This conforms to the objective of Ukraine’s gradual regulatory approximation to the Union acquis as laid down in the preamble to the Agreement and in particular in Articles 114, 124 and 138 of Chapter 6 (Establishment, Trade in Services and Electronic Commerce) of Title IV (Trade and Trade-related Matters) of the Agreement.
The envisaged act will become binding on the parties in accordance with Article 11 of the Annex XVII, which provides that: ‘The Trade Committee may decide to modify the provisions of this Annex XVII in case it deems necessary’. Furthermore, Article 465(3) of the Agreement provides that: ‘The Association Committee shall have the power to adopt decisions in the cases provided for in this Agreement and in areas in which the Association Council has delegated powers to it. These decisions shall be binding upon the Parties, which shall take appropriate measures to implement them. The Association Committee shall adopt its decisions by agreement between the Parties’
3. Position to be taken on the Union's behalf
The position to be adopted on behalf of the Union aims at amending Appendix XVII-3 (Rules applicable to telecommunication services), Appendix XVII-4 (Rules applicable to postal and courier services) and Appendix XVII-5 (Rules applicable to international maritime transport) of Annex XVII.
Amending the Appendices is necessary in order to reflect the evolution of the Union acquis that has taken place in the above-mentioned services sectors since the initialling of the negotiated text of the Agreement on 30 March 2012.
This decision implements the Union’s common commercial policy towards an Eastern Partner country, based on the provisions of the above-mentioned Association Agreement. It is consistent with the objective of Ukraine’s gradual regulatory approximation to the Union acquis as laid down in the preamble to the Agreement.
4. Legal basis
4.1.Procedural legal basis
4.1.1.Principles
Article 218(9) of the Treaty on the Functioning of the European Union (TFEU) provides for decisions establishing ‘the positions to be adopted on the Union’s behalf in a body set up by an agreement, when that body is called upon to adopt acts having legal effects, with the exception of acts supplementing or amending the institutional framework of the agreement.’
4.1.2.Application to the present case
The Association Committee in trade configuration is a body established by the Association Agreement. The decision the Association Committee in trade configuration shall adopt constitutes an act having legal effects. The envisaged act will be binding under international law in accordance with Article 465(3) of the Agreement. The envisaged act does not supplement or amend the institutional framework of the Agreement. Therefore, the procedural legal basis for the proposed decision is Article 218(9) TFEU.
4.2.Substantive legal basis
4.2.1.Principles
The first subparagraph of Article 207 i TFEU provides for the exclusive Union competence with regard to trade in services, with the exception of transport services, with regard to third countries including stipulations on the regulatory framework conditions for the supply of such services. Article 100(2) TFEU provides for a legal base regarding measures for sea and air transport.
4.2.2.Application to the present case
The main objective and content of the envisaged act relate to ensuring the implementation of the Union's common commercial policy including aspects of international maritime transport.
Therefore, the substantive legal basis of the proposed decision is provided by Article 100(2) TFEU and the first subparagraph of Article 207 i TFEU.
4.3.Conclusion
The legal basis of the proposed decision should be Article 100(2) and the first subparagraph of Article 207 i, in conjunction with Article 218(9) TFEU.
5. Publication of the envisaged act
As the decision of the Association Committee will amend the Agreement, it is appropriate to publish it in the Official Journal of the European Union after its adoption.